In Mintel, Int'l Group, Ltd. V. Neergheen, 2009 U.S. Dist. LEXIS 32738 (N.D. Ill., Apr. 17, 2009), U.S. District Court Judge Robert Dow ruled that more expert testimony was needed before ruling on plaintiff's spoliation motions.

Plaintiff sued its former employee who went to work for a competing company, Datamonitor, alleging violations of the Illinois Trade Secrets Act, Computer Fraud Abuse Act and violations of various terms of defendant's employment agreement.  Prior to the commencement of the bench trial in late January, defendant moved, in limine, to exclude: (1) the testimony of plaintiff's expert witness; (2) evidence or argument regarding allegations of spoliation; (3) evidence or argument regarding prior disputes between plaintiff and Datamonitor; and (4) evidence - namely emails - plaintiff failed to properly disclose during discovery.   Prior to trial, plaintiff moved for leave to amend its complaint to add an additional count for negligence/spoliation of evidence.  In addition, plaintiff moved for discovery sanctions and for sanctions because of evidence spoliation.

The District Court, reviewing plaintiff's spoliation allegations de novo, ordered more expert testimony related to files taken from plaintiff's computers that reside (or once resided) on defendant's Mintel-issued laptop computer and USB drives.  Specifically, the court wanted to find out whether any files relating to or taken from Mintel were deleted from that computer and those USB drives, and if so, whether the deletions were accidental or intentional. Accordingly, the court reserved ruling on the spoliation issue until after it heard testimony from the experts, after which time the court stated it would issue a written ruling on whether any basis exists for sanctions and/or an adverse inference on the basis of the alleged spoliation. The court denied, as untimely, plaintiff's motion for leave to amend its complaint.

The District Court also affirmed Judge Valdez's denial of plaintiff's emergency motion to compel Datamonitor to comply with a subpoena seeking a "forensic image of Datamonitor's desktop and/or laptop computers used at any time by Defendant and the forensic image of Defendant's electronic mail account."